State Records Committee Appeal Decision 2012-26

BEFORE THE STATE RECORDS COMMITTEE OF THE STATE OF UTAH

STEPHEN DARK, REPORTER FOR CITY WEEKLY, Petitioner, vs.

UTAH DEPARTMENT OF HUMAN SERVICES, Respondent.

DECISION AND ORDER

Case No. 12-26

By this appeal, Stephen Dark, Reporter for the City Weekly (“Petitioner”), seeks access to records regarding an audit dated January 13, 2011, the Department of Human Services’ (“DHS”) response to the audit, and associated e-mails.

FACTS

On or about September 21, 2012, Mr. Dark submitted a records request pursuant to the Utah Government Records Access and Management Act (“GRAMA”) to DHS seeking: (1) A copy of the performance audit dated January 13, 2012; (2) a copy of DHS’ response to that audit; and (3) a copy of any e-mails regarding the audit from Lt. Governor Greg Bell, Cody Stewart, Spencer Hadley, David Pulsipher, Broc Christensen, Craig Balls, to or from DHS from January 1, 2011 forward.

DHS responded to Mr. Dark on October 5, 2012 by providing a redacted copy of the audit and the DHS response. DHS also provided redacted e-mails responsive to Mr. Dark’s request. However, DHS denied access to all information it classified as private, protected or controlled.

Mr. Dark appealed the partial denial of access to Elizabeth Knight, Chief Administrative Officer for DHS. Mr. Dark claimed that the redactions were excessive and that e-mails had been withheld from him. Ms. Knight affirmed the previous partial denial indicating that information generated by a report of child abuse or neglect is private, controlled or protected and remains so regardless of the purpose for which the information is used pursuant to Utah Code § 62A-4a-412. Ms. Knight further indicated they could only provide the same redacted copy of the audit that the Lt. Governor’s office previously provided.

Petitioner, Stephen Dark, Reporter for the City Weekly, now appeals DHS’s denial of his GRAMA request to the State Records Committee (“Committee”). The Committee having reviewed the submissions of the parties and having heard oral argument and testimony on December 13, 2012, now issues the following Decision and Order.

STATEMENT OF REASONS FOR DECISION

1. GRAMA specifies that “all records are public unless otherwise expressly provided by statute.” Utah Code § 63G-2-201(2). Records that are not public are designated as either “private,” “protected,” or “controlled.” See, Utah Code §§ 63G-2-302, -303, -304 and -305.

2. Reports made by the Division of Child and Family services and any information in the divisions possession obtained as a result of a report of child abuse or neglect are private, controlled or protected records under Title 63G, Chapter 2, Government Records Access and Management Act. See, Utah Code § 62A-4-412.

3. Correspondence by and with a governmental entity in which the governmental entity determines or states an opinion upon the rights of the state, a political subdivision, the public, or any person are normally public if properly classified. Utah Code § 63G-2-301(3)(h).

4. At the hearing, Counsel for DHS argued that it appropriately redacted information from the records provided to Mr. Dark including the DHS audit response and various e-mails because the information revealed fact specific data regarding a report of child abuse or neglect and was therefore, private, protected or controlled information pursuant to Utah Code § 62A-4a-412. DHS further argued that given the parameters of Mr. Dark’s GRAMA request, it had already provided all records responsive to his request.

5. Mr. Dark argued that DHS was making vague, blanket denials to records, and that he believed that many e-mails responsive to his GRAMA request existed but were not being provided.

6. Counsel for DHS countered that while many records including e-mails were reviewed in response to Mr. Dark’s request, most were records associated with the underlying child abuse and/or neglect case not disclosable to Mr. Dark.

7. After hearing the arguments of the parties, and having reviewed their submissions, and un-redacted copies of the records in camera, the Committee is persuaded that the records contain data related to a report or are in the possession of DHS as a result of a report of child abuse or neglect. Inasmuch as the redactions contain such data, pursuant to Utah Code § 63G-2-201(6)(a), the records are governed by Utah Code § 62A-4a-412, and are properly classified as private, protected and/or controlled pursuant to that statute. Accordingly, the records should not be released to Mr. Dark.

ORDER

THEREFORE, IT IS ORDERED THAT the appeal of Petitioner, Stephen Dark, Reporter for the City Weekly, is DENIED pursuant to Utah Code § 63G-2-201(6)(a) and 62A-4a-412.

RIGHT TO APPEAL

Either party may appeal this Decision and Order to the District Court. The petition for review must be filed no later than thirty (30) days after the date of this order. The petition for judicial review must be a complaint. The complaint and the appeals process are governed by the Utah Rules of Civil Procedure and Utah Code § 63G-2-404. The court is required to make its decision de novo. In order to protect its rights on appeal, a party may wish to seek advice from an attorney.

PENALTY NOTICE

Pursuant to Utah Code § 63G-2-403(14)(d), the government entity herein shall comply with the order of the Committee and, if records are ordered to be produced, file: (1) a notice of compliance with the records committee upon production of the records; or (2) a notice of intent to appeal. If the government entity fails to file a notice of compliance or a notice of intent to appeal, the Committee may do either or both of the following: (1) impose a civil penalty of up to $500 for each day of continuing noncompliance; or (2) send written notice of the entity's noncompliance to the Governor for executive branch entities, to the Legislative Management Committee for legislative branch entities, and to the Judicial Council for judicial branch agencies’ entities.